Retail industry rails against swipe-fee settlement

June 17, 2014

The National Retail Federation and the Retail Industry Leaders Association asked an appeals court to overturn a federal judge’s approval of a lawsuit settlement over Visa and MasterCard’s credit card swipe fees, saying it was negotiated by only a handful of merchants and would do nothing to bring the fees under control.

“The truth is that there is no settlement with the retail industry, only an agreement with a handful of merchants who do not represent the industry as a whole,” NRF Senior Vice President and General Counsel Mallory Duncan said. “Given that the judge knew this backroom deal was opposed by a broad range of small and large retailers alike and allows these fees to continue to skyrocket, it clearly should never have been approved. This is a serious mistake the appellate court needs to correct.”

“The retail community remains fully committed to fighting this flawed settlement and addressing the fundamental lack of competition in the electronic payments market,” RILA Executive Vice President and General Counsel Deborah White said. “Quite simply, the proposed settlement not only undermines merchants’ legal rights and fails to restrain Visa and MasterCard’s ability to increase swipe fees with impunity, but it also has broad implications on the rights of others in future meritorious class action cases.”

Both organizations filed notices of appeal with the Second U.S. Circuit Court of Appeals in New York earlier this year, and followed up today with a joint brief asking the court to overturn a Dec. 13, 2013, ruling by U.S. District Court Judge John Gleeson.

“A broad cross section of the American retail industry numbering thousands of businesses from iconic national department store chains and general merchandise chains to apparel outlets, specialty shops, restaurants and one-location Main Street stores thoughtfully analyzed the settlement and concluded that it offers them no benefit,” the brief said. “While a settlement this skewed was bound to be unpopular, the extent of dissatisfaction within the retail industry has been extraordinary.”

“Approval of a mandatory settlement of such breathtaking scope in the face of widespread and substantive objection is unprecedented and warrants reversal,” the brief said.